FILED

United States Court of Appeals

Tenth Circuit

November 21, 2013

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 12-7074

RICHARD DEAN BASNETT,

Defendant-Appellant.
_______________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:12-CR-00015-RAW-1)
_______________________________________
Carl Folsom, III, Research and Writing Specialist (Julia L. OConnell, Federal
Public Defender, and Robert Ridenour, Assistant Federal Public Defender, on the
briefs), Office of the Federal Public Defender, Eastern District of Oklahoma,
Muskogee, Oklahoma, for Defendant-Appellant.
Gregory Dean Burris, Assistant United States Attorney (Linda A. Epperley,
Assistant United States Attorney, on the brief), Office of the United States
Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, for PlaintiffAppellee.

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

The Defendant, Mr. Richard Basnett, was convicted of unlawful possession

of a firearm and sentenced to 37 months of imprisonment (with 2 years of
supervised release). He appeals, arguing that the sentence was too long. When
the trial court imposed the sentence, it relied on guidelines governing possession
of at least eight firearms and possession of firearms in connection with a separate
felony.
We must decide whether the district court had enough evidence to
reasonably infer that Mr. Basnett possessed: (1) eight or more guns (other than
antiques or those owned solely for hunting or collecting), and (2) at least one gun
in connection with a separate felony. We conclude that the government had
sufficient evidence to draw these inferences, and we affirm.
I.

The Quantity of Firearms

Mr. Basnett does not deny that he possessed firearms, but does challenge

the number attributed to him. We reject this challenge.

A.

The Quantity of Firearms

The threshold question is whether the district judge could reasonably infer
the presence of at least eight firearms (as defined by federal statute). At
sentencing, the district judge applied an enhancement based on a sentencing
guideline requiring possession of at least eight firearms. This enhancement was
supported by the testimony of Agent Ashley Stephens, who noted that officers had
found ten guns in their first search of Mr. Basnetts home and four additional
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guns in a second search of the home. R. vol. 2, at 101-02. From this evidence,
the district court could reasonably infer that Mr. Basnett had at least eight guns.
B.

Whether the Firearms Were Antiques

The resulting question is whether the 8+ guns are considered firearms for
purposes of federal law. Mr. Basnett points out that a gun does not count if it is
an antique. He is correct; thus, the question is whether there were at least eight
non-antique guns in his home. See 18 U.S.C. 921(a)(3) (2006).
This question requires us to determine which party bears the initial burden
of producing evidence on whether the guns were antiques. We make that
determination in the context of the federal statute defining firearm.
The statute defines firearm to mean a weapon that can be readily
converted to expel a projectile, but does not include an antique firearm. Id.
This language leads both parties to pin the burden of proof on the other. The
government states that because the statute provides an exclusion for antiques,
characterization as an antique is an affirmative defense; Mr. Basnett states that
because the statute provides an exclusion for antiques, the government must prove
that the gun is not an antique.
We agree with the government based on our decision in United States v.
Neal, 692 F.2d 1296 (10th Cir. 1982), where we held that an exclusion (built into
the statutory definition of a firearm) involves an affirmative defense rather than
an element of the governments prima facie case.
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In United States v. Neal, the issue was whether a weapon constituted a

firearm consisting of a destructive device. See Neal, 692 F.2d at 1303. Like
the law defining a firearm, the law in Neal said what the term destructive
device excluded: The term, destructive device shall not include any device
which is neither designed nor redesigned for use as a weapon. 26 U.S.C.
5845(f) (1976). Because the law said what the term destructive device didnt
includerather than what it did includethe defendant argued that the issue
involved an element of the offense. Neal, 692 F.2d at 1303. We rejected this
argument, treating the exclusion as an affirmative defense rather than as an
element of the governments prima facie case. Id.
We cannot fathom a way to treat the exclusion in Neal as an affirmative
defense and the exclusion here as an element of the governments prima facie
case. In Neal and the present case, the underlying statutes contained nearly
identical language. Both statutes said what the term (firearm or its subset,
destructive device) shall not include. 26 U.S.C. 5845(f) (1976); 18 U.S.C.
921(a)(3) (2006). In Neal, we held that this language required us to treat the
exclusion as an affirmative defense. There is no conceivable reason for us to treat
the exclusions for destructive devices and firearms differently. Indeed, the
definition of firearm expressly includes all destructive devices. 18 U.S.C.
921(a)(3) (2006).

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Every circuit court of appeals to consider the issue has treated the antique
exception as affirmative defense. See Gil v. Holder, 651 F.3d 1000, 1005 n.3 (9th
Cir. 2011) ([E]very other circuit of which we are aware that has considered the
921(a)(3) antique firearm exception in the criminal context, has treated it as
an affirmative defense rather than an element of the crime.); United States v.
Lawrence, 349 F.3d 109, 122 (3d Cir. 2003) (Every circuit court of appeals that
has considered this issue has agreed that establishing that a weapon is an antique,
firearm for purposes of 921 and 922 is an affirmative defense. . . .).
Were we writing on a clean slate, we would be inclined to follow the
approach taken by these courts. Surely owners of antique guns are better
equipped to prove that their guns are antiques than the government, which would
otherwise bear the initial burden of producing evidence in every case to prove
what a gun is not. See United States v. Mayo, 705 F.2d 62, 76 (2d Cir. 1983)
(holding that the defendant bore the burden of proving a guns antique status in
part because dealers or collectors of antique guns are in a better position to place
the [antique-gun] exception in issue); Lawrence, 349 F.3d at 121-22 (treating
antique status as an affirmative defense in part because the government cannot be
expected to address whether the gun is an antique when the defense did not
establish the date of manufacture). But, we are not writing on a clean slate. We
decided the issue in Neal, concluding that Congress created an affirmative
defense when it said what a destructive device excluded.
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In his reply brief, Mr. Basnett discounts the case law involving the
definition of a firearm, pointing out that we are dealing here with a sentencing
enhancement rather than an issue involving guilt or innocence. Appellants Reply
Br. at 2-3, 6. But the guideline commentary expressly adopts the statutory
definition of a firearm. U.S. Sentencing Guidelines Manual 2K2.1 cmt. n.1
(2011). We would have no logical basis to interpret the same statutory language
one way in Neal and the opposite way for sentencing (as Mr. Basnett would have
us do). Thus, we follow Neal in deciding that characterization as an antique is an
affirmative defense rather than an element of the governments prima facie
burden. See United States v. Spedalieri, 910 F.2d 707, 710 n.3 (10th Cir. 1990) (a
panel cannot overrule circuit precedent).
Because characterization as an antique involves an affirmative defense, the
defendant bears the initial burden of producing evidence. See Patterson v. New
York, 432 U.S. 197, 206-07 (1977).
Mr. Basnett presented no evidence to indicate that a single gun in his home
was an antique. Even without any evidence by Mr. Basnett, a deputy sheriff
testified that the guns seen in the first home visit were not antiques. R. vol. 2, at
71. From this testimony, the sentencing judge could reasonably find that Mr.

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Basnett had at least eight guns that are considered firearms for purposes of the
sentencing enhancement. 1
II.

Potential Downward Adjustment for Hunting or Collecting

The district court could have applied a downward adjustment to the

guideline calculation if Mr. Basnett possessed the guns solely to collect or hunt.
U.S. Sentencing Guidelines Manual 2K2.1(b)(2) (2011). For a downward
adjustment, however, Mr. Basnett bore the burden of proving by a preponderance
of the evidence that he had owned the guns exclusively for collecting or hunting.
See United States v. Hanson, 534 F.3d 1315, 1317 (10th Cir. 2008). The district
court did not adjust the guidelines downward on this basis, and Mr. Basnett
contends that the omission constituted error. We disagree.
The sentencing guidelines advise a downward adjustment in the offense
level if the defendant possessed all ammunition and firearms solely for lawful
sporting purposes or collection. U.S. Sentencing Guidelines Manual
2K2.1(b)(2) (2011).
Mr. Basnett states that he owned the guns to hunt. But, he never raised this
issue in the district court; thus, we consider only whether the district court
committed plain error. See United States v. Mendoza, 543 F.3d 1186, 1191 (10th

In his reply brief, Mr. Basnett argues that the government did not present
evidence that any of the guns had traveled in interstate commerce. Appellants
Reply Br. at 7-8. This argument comes too late, as it did not appear in Mr. Basnetts
opening brief. See United States v. Ford, 613 F.3d 1263, 1272 n.2 (10th Cir. 2010).
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Cir. 2008). We do not believe that the district court committed plain error by
declining to grant a sua sponte adjustment.
In urging that the court should have made such an adjustment, Mr. Basnett
argues that one of the guns was a type of rifle that would have been used for
hunting. Appellants Opening Br. at 29. This argument, even if believed, would
not demonstrate plain error because: (1) Mr. Basnett did not present any evidence
to the district court to suggest that he had used the rifle solely to hunt, and (2) the
government presented evidence that there were fourteen guns in the home; and
even now, Mr. Basnett does not suggest that he had used any of the other guns
solely to hunt. As noted above, Mr. Basnett would have been entitled to a
downward adjustment only if he showed that he had kept all of the guns and the
ammunitionrather than just one of the fourteen gunssolely to hunt or collect.
Thus, even if we were to credit Mr. Basnetts unproven factual assertion in this
appeal, we would not regard the absence of a downward adjustment as plain error.
In addition to claiming that the rifle was useful for hunting, Mr. Basnett
contends that he owned the guns solely for collection. The parties disagree about
whether this issue was properly preserved. Even if it had been preserved,
however, the district court did not err by declining to address the possibility of a
downward adjustment.
Mr. Basnett raised the issue in his sentencing memorandum, stating that
three of the guns were bought as heirlooms for children and that a fourth gun (the
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stolen .270 Winchester rifle) had been possessed for collection purposes. R.
vol. 1, at 22-23. But Mr. Basnett did not present evidence to support this
statement; and even if we were to accept the statement at face value, it would not
have accounted for ten of the fourteen firearms found in Mr. Basnetts home. As
a result, the district court did not err by declining to grant a downward adjustment
or to discuss this issue.
III.

Possession of the Firearms in Connection with a Separate Felony

The guidelines allow a sentencing enhancement for possession of firearms

in connection with a separate felony. U.S. Sentencing Guidelines Manual

2K2.1(b)(6) (2011). The district court applied this enhancement, finding that
Mr. Basnett had kept the guns in connection with his concealment of stolen
property. Mr. Basnett challenges this finding, and we must decide whether the
finding constituted clear error. See United States v. Bunner, 134 F.3d 1000, 1006
(10th Cir. 1998). It did not.
The district court could apply the enhancement if the weapon had the
potential to facilitate a separate felony offense. U.S. Sentencing Guidelines
Manual 2K2.1(b)(6) cmt. n.14(A) (2011). In applying this test and invoking the
enhancement, the district court relied on the volume of stolen merchandise at Mr.
Basnetts home and the proximity of his guns to the stolen property. R. vol. 2, at
10-11. Mr. Basnett argues that the district court:

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lacked sufficient evidence of a theft ring because the testimony

consisted of hearsay or double hearsay, and

lacked sufficient evidence for an inference to link the guns to a

separate offense involving stolen property.

We reject both arguments.

A.

Use of Hearsay

In part, Mr. Basnett challenges the finding that he had committed another
felony. This challenge is based on the trial courts use of hearsay. The hearsay
consisted of out-of-court statements by Jason Sears, Eddie Arnold, and Mr.
Basnetts son to officers who repeated the statements to Agent Stephens.
According to Mr. Basnett, the trial court improperly relied on the hearsay
testimony in finding that he had stolen property. 2 And, without that finding, the
enhancement would have been improper because Mr. Basnett could not have used
a firearm to commit a non-existent felony. We reject Mr. Basnetts contention.
Our analysis of the contention involves three steps:
!

whether Mr. Basnett preserved an objection to the use of hearsay,

whether the hearsay statements contained minimal indicia of

reliability, and

Mr. Basnett contends that the district court relied on a felony involving
concealment of stolen property. This contention is inaccurate. The district court
relied on a crime involving transportation of stolen property. Concealment and
transportation of stolen property are separate crimes. Concealment is a crime under
Oklahoma law, and interstate transportation is a crime under federal law. See Okla.
Stat. tit. 21, 1713(B) (2011); 18 U.S.C. 2314 (2006).
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whether the district court committed clear error in its finding.

The government contends that we should confine our review to plain error
because Mr. Basnett did not object to the admissibility of the out-of-court
statements. Mr. Basnett responds that defense counsel argued to the district court
that it should not rely on the out-of-court statements. We need not decide
whether the plain-error standard applies because we would affirm even under a
more rigorous standard of review. Still, we should address the nature of defense
counsels objection because it bears on our inquiry.
Defense counsel argued against reliance on the out-of-court statements, but
did not object to their admissibility. On appeal, Mr. Basnett appears to make the
same argument, challenging the district courts reliance on the out-of-court
statements rather than their admissibility.
We can assume, for the sake of argument, that defense counsels argument
sufficiently preserved the objection. But, even so, we would consider only
whether the district courts finding was clearly erroneous. See United States v.
Backas, 901 F.2d 1528, 1529 (10th Cir. 1990) (holding that the sufficiency of
evidence for a sentencing enhancement was primarily factual, requiring
application of the clearly erroneous standard). Applying this standard, we
conclude that the finding was not clearly erroneous.
In arguing that the finding did constitute clear error, Mr. Basnett relies
largely on the fact that Mr. Sears was a convicted felon and that the statements
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made by Mr. Sears and Mr. Arnold constituted double hearsay. We may assume,
for purposes of argument, that these statements involved double hearsay. But, the
district court could rely on double hearsay as long as the statements contained
minimal indicia of reliability. See United States v. Lopez, 100 F.3d 113, 120
(10th Cir. 1996) (Hearsay statements need only contain minimal indicia of
reliability to be used at sentencing.).
The district court could reasonably infer reliability from the existence of at
least some corroboration. For example, Mr. Sears told investigators that they
would find a .270 Winchester rifle (with some unique characteristics) at the
Basnett homeand they did. R. vol. 2, at 88. Mr. Sears told investigators that
the rifle had been stolen, and Agent Ashley Stephens testified that officers were
able to corroborate this statement through a record review. Id.
Apart from the out-of-court statements by Mr. Sears, Mr. Arnold, and Mr.
Basnetts son, authorities were able to confirm from over a hundred pages of
documentation that many of the items in Mr. Basnetts home had been stolen. Id.
at 123.
Mr. Basnett argues that the district court could not rely on this
documentation because it was not included in the record. Appellants Reply Br.
at 16. For this proposition, he relies on United States v. Boyd, 289 F.3d 1254
(10th Cir. 2002). Appellants Reply Br. at 16. This decision is inapplicable, and

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Mr. Basnett confuses the need for record evidence supporting the enhancement
and the need for corroboration.
Agent Stephenss testimony about the documentary evidence served only to
support the reliability of his testimony about the out-of-court statements to other
officers. The district court could rely on the testimony about this documentary
evidence to decide whether the hearsay testimony was reliable.
Boyd does not suggest otherwise. There, the district court attempted to
account for two different measurements of drug quantity. See United States v.
Boyd, 289 F.3d 1254, 1257 (10th Cir. 2002). Rather than try to reconcile the
difference through the evidence, the district court looked to case law and found
opinions referring to decreases in drug quantity with the passage of time. See id.
The district court relied on these decisions, rather than evidence, to arrive at its
own finding on drug quantity. Id. We held that the court could not rely on
evidence outside the record. Id. at 1258-60. But, we did not sayand have never
saidthat a district court is powerless to find reliability based on testimony about
the content of supporting documents. Thus, we reject Mr. Basnetts contention
that the district court improperly relied on the documentary evidence discussed by
Agent Stephens.
In addition to complaining about the omission of this documentary proof
from the record, Mr. Basnett argues that one witness, Mr. Kyle Eller, gave an outof-court statement that accounted for at least some of the property believed to be
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stolen. The government presented evidence that two Kubota tractors had been
stolen, and Mr. Eller said that he and Mr. Basnett had bought something from a
Kubota dealer. R. vol. 2, at 56-57, 89-90, 110. But, Mr. Eller also told
investigators that he had been asked by Mr. Basnett to store a skid loader. Id. at
109. And, according to Agent Stephens, authorities were eventually able to
confirm that this skid loader had been stolen. Id. at 107.
Because Agent Stephenss out-of-court statements were corroborated, the
district court could reasonably rely on them to find that Mr. Basnett had a
substantial volume of stolen merchandise in his home. Thus, the district courts
finding did not constitute clear error.
B.

Connection Between the Gun Possession and Transportation of

Stolen Property

The record also provided a reasonable basis to link the guns to a separate
offense involving transportation of stolen property.
The evidence indicated that 60 stolen items were found in Mr. Basnetts
home. Id. at 106-07. And the government presented evidence that Mr. Basnett
had participated in a theft ring that involved hundreds of thousands of dollars. Id.
at 57.
With the stolen property, Mr. Basnett had an extensive supply of guns and
ammunition throughout his home. As discussed above, authorities saw fourteen
different guns between the two searches. The authorities also found:

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sixteen rounds of .243 ammunition,

five boxes of .270 ammunition,

four boxes of 12 gauge ammunition,

two boxes of .300 Winchester Magnum ammunition,

one box of .38 Special ammunition,

one box of .45 caliber ammunition, and

two boxes and nine rounds of 20 gauge ammunition.

Id. at 62-63.
Some guns were under Mr. Basnetts bed, and others were in a childs room
and in a dresser drawer. Id. at 64, 78, 99-101. According to one individual living
in the home, there were several guns out in the open. Id. at 124. Other
evidence indicated that the guns had been moved back and forth from room to
room. Id.
From the volume of stolen property, guns, and ammunition at the home, the
sentencing judge could reasonably infer that Mr. Basnett kept the guns in
connection with his transportation of stolen property. The guns were spread
throughout the home, with some out in the open. From this evidence, the district
court could reasonably have inferred that Mr. Basnett had the guns out in the open
so that he could use them to safeguard his stash of stolen merchandise. See
United States v. Waltower, 643 F.3d 572, 578 (7th Cir. 2011) (holding that the
accessibility of a loaded handgun supported the enhancement under section
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2K2.1(b)(6) because the firearms had the potential to facilitate a drug trafficking
offense).
The court could also reasonably have inferred that Mr. Basnett kept the
guns for protection. The theft ring involved hundreds of thousands of dollars, and
Mr. Basnett had 60 stolen items in his home. The court could legitimately have
inferred that Mr. Basnett needed to keep the guns to secure his stolen property.
See United States v. Justice, 679 F.3d 1251, 1255 (10th Cir. 2012) (holding that
the enhancement can be applied if possession of a firearm could embolden the
possessor to commit an offense). After all, if others were to steal from Mr.
Basnett, he could scarcely have called the police. Thus, the district court could
reasonably have inferred that the extensive supply of guns and ammunition
provided Mr. Basnett with his sole source of protection. In these circumstances,
the district court did not commit clear error in finding that Mr. Basnett had
possessed one or more guns in connection with a separate felony. See United
States v. Rogers, 594 F.3d 517, 522 (6th Cir. 2010) (upholding application of the
enhancement because the defendants possession of a gun at his home had the
potential to facilitate his unlawful chop-shop, because chop-shop customers
are by definition not law-abiding and the defendant could not call the police if a
customer decided to steal his parts), vacated on other grounds, __ U.S. __, 131 S.
Ct. 3018 (2011) (mem.).
IV.

Substantive Reasonableness of the Sentence

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Mr. Basnett argues that his sentence was substantively unreasonable. We

reject this argument.
In addressing this argument, we consider whether the district court abused
its discretion. Gall v. United States, 552 U.S. 38, 51 (2007). And in determining
whether the court abused its discretion, we give substantial deference to its
selection of an appropriate sentence. United States v. Smart, 518 F.3d 800, 806
(10th Cir. 2008). We presume the sentence is substantively reasonable when it
falls within the sentencing guideline range. United States v. Reyes-Alfonso, 653
F.3d 1137, 1145 (10th Cir. 2011).
The district court did not abuse its discretion. In sentencing Mr. Basnett to
37 months in prison and 2 years of supervised release, the district court discussed
the pertinent factors under 18 U.S.C. 3553 and ultimately chose the lowest
possible sentence under the guidelines. The district court acted within its
discretion; thus, we reject Mr. Basnetts contention based on substantive
reasonableness.
V.

Conclusion
The district court did not err in applying the sentencing guidelines. In

applying these guidelines, the court could justifiably find that Mr. Basnett
possessed eight or more firearms. Once the court made this finding, it could
also apply an enhancement based on possession of the guns in connection with the
transportation of stolen property, and the court had no obligation to provide a
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downward adjustment based on exclusive use of the firearms for hunting or

collecting. The eventual sentence, falling at the bottom of the guideline range,
was substantively reasonable. As a result, we affirm.

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